Opinion
Index Nos. 20977/2018E 25135/2018E
10-31-2022
ALWIN MARTINEZ, Plaintiff, v. ITF LLC, FAYSAL MUKHITDINOV, FURKAT YULDASHEV, J.B. HUNT TRANSPORT, INC., XTRA LEASE, INC., IRVING MARTINEZ, and YESENIA CAMACHO, Defendants. YESENIA CAMACHO, Plaintiff, v. ITF LLC, FAYSAL MUKHITDINOV, FURKAT YULDASHEV, J.B. HUNT TRANSPORT, INC., XTRA LEASE, INC., and ALWIN MARTINEZ, Defendants.
Unpublished Opinion
HON. BEN R. BARBATO, JUDGE
Defendants, J.B. HUNT TRANSPORT, INC., and XTRA LEASE, LLC, (i/s/h/a XTRA LEASE, INC.), move for leave to renew and vacate this Court's Order dated March 21, 2022. They make this same motion in "Action No. 1" (motion Seq #12), and, in "Action No. 2" (motion Seq #4), and both motions are decided in this same Order.
By the subject March 21, 2022 Order, in "Action No 1", this Court had granted Plaintiff ALWIN MARTINEZ' Motion (Seq #10) for partial summary judgment in his favor on liability, as against Defendants, ITF, MUKHITDINOV, YULDASHEV, and JB HUNT; and dismissed Defendants' affirmative defenses alleging ALWIN MARTINEZ' culpable conduct, (see Order, in "Action No 1" [Seq #10] dated March 21, 2022, at NYSCEF Doc No 403).
By the subject March 21, 2022 Order, in "Action No. 2", this Court had granted Defendant ALWIN MARTINEZ' Motion (Seq #1), for summary judgment dismissing this action, and any cross claims as against him. Also, in "Action No. 2", this Court had granted Plaintiff CAMACHO's Motion (Seq #2) for partial summary judgment in her favor on liability, as against Defendants, ITF, MUKHITDINOV, YULDASHEV, and JB HUNT; and dismissed JB HUNT'S affirmative defense of lack of permissive use. This Court had also denied that part of Plaintiff CAMACHO's motion which sought dismissal of Defendants' affirmative defenses alleging CAMACHO's culpable conduct, (see Order, in "Action No 2" [Seq #1 and #2] dated March 21, 2022, at NYSCEF Doc Nos 133-34).
It is noted that, in the underlying motions, summary judgment on liability was not sought as to Defendant XTRA.
Thereafter, this Court had denied Plaintiff CAMACHO's motion to renew and reargue that part of the said subject March 21, 2022 Order which had denied CAMACHO's motion to dismiss Defendants' affirmative defenses alleging CAMACHO's culpable conduct, (see Order, in "Action No 2" [Seq #3] dated July 13, 2022, at NYSCEF Doc No 162).
Also, Defendant XTRA LEASE, LLC, was dismissed from the action, (see Order, in "Action No. 1" [Seq #11] dated August 15, 2022, at NYSCEF Doc No 434).
The above-entitled actions were consolidated for joint trial, (see "Order of Joint Trial", in "Action No. 1" [Seq #3] dated September 11, 2018, at NYSCEF Doc No 83). A Note of Issue was filed, in each action, in June 2021.
The submissions on these motions include the Affidavit of Plaintiffs' expert engineer, Nicholas Bellizzi, P.E., dated October 15, 2021, pertaining to this matter; the Affidavit of Bellizzi dated January 28, 2019, pertaining to another matter entitled Charles v Bagels By Bell, and other papers regarding that matter; the Affidavit of Bellizzi dated March 14, 2019, pertaining to a matter entitled Alvarez v Suburban Propane; the Affidavit of Bellizzi dated February 17, 2018, pertaining to a matter entitled Rodriguez v Palacio; the Affidavit of JB HUNT/XTRA's expert accident reconstructionist, John C. Scott dated August 1, 2022; and the Affidavit of JB HUNT/XTRA's expert psychologist, Joseph Salas, dated August 4, 2022.
Parties/Alleged Facts:
These are actions to recover damages for alleged personal injuries sustained by Plaintiffs, ALWIN MARTINEZ, and YESENIA CAMACHO, respectively, in a motor vehicle accident, which occurred on, or about, December 13, 2017, at 1:15 a.m., on the southbound Interstate 95, in Mamaroneck, Westchester County, New York State. The incident was captured on dashcam video.
The speeding truck, driven by Defendant YULDASHEV, rear-ended CAMACHO'S Toyota, which was partially parked in the right travel lane with its taillights illuminated. The collision pushed the Toyota into ALWIN MARTINEZ' Chevrolet, which was parked on the road's right shoulder. The Chevrolet ran over ALWIN MARTINEZ and CAMACHO, who were standing outside of their vehicles, while in the process of jump-starting ALWIN MARTINEZ' disabled Chevrolet. The truck's tractor was owned by Defendant MUKHITDINOV, who leased it to Defendant ITF, a common carrier, who was YULDASHEV's employer. The truck's 53-foot-long trailer was owned by Defendant XTRA, who leased it to Defendant JB HUNT.
ALWIN MARTINEZ' injuries include the amputation of both of his legs; and CAMACHO's injuries include comminuted fractures of her right ankle.
Applicable Law/Analysis:
The issue presented herein is whether Defendants JB HUNT/XTRA should be granted leave to renew, and vacate, this Court's Order dated March 21, 2022, based upon an Affidavit made by Plaintiffs' expert engineer in another matter. For the reason set forth herein, Defendants' motion is denied.
The relief requested, pertaining to Defendant XTRA, is also denied upon the ground that it is deemed moot, since XTRA was dismissed from the action, (see Order, in "Action No. 1" [Seq #11] dated August 15, 2022, at NYSCEF Doc No 434).
CPLR R 2221 "Motion affecting prior order" provides as follows: "(e) A motion for leave to renew: 1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and
3. shall contain reasonable justification for the failure to present such facts on the prior motion", [emphasis added]
The purported "new facts", now offered by Defendants JB HUNT/XTRA, is an Affidavit, by expert engineer Nicholas Bellizzi, P.E., dated January 28, 2019, made in connection with the matter of Charles v Bagels by Bell, Ltd., 203 A.D.3d 797 (2d Dept 2022).
The moving Defendants, JB HUNT/XTRA, allege that, in the Charles case, "Bellizzi swore to a liability opinion that is incompatible with the liability opinion he espoused here in his affidavits dated October 15, 2021", and "that the two Bellizzi affidavits ... present irreconcilable views".
Defendants also allege that they had not presented this said Affidavit on the prior motion because they did not become aware of it until they obtained it, together with the underlying briefs in the Charles case, after the Charles case was cited in CAMACHO's motion to renew and reargue, filed on May 2, 2022.
However, contrary to Defendants' arguments, Bellizzi's Affidavit in the Charles case is not "incompatible", and not "irreconcilable", with his Affidavit made in the case at bar.
In Charles, Bellizzi had opined that "a" proximate cause of that accident was the vehicle which was rear-ended while double-parked; Bellizzi stated, in pertinent part, as follows: "the defendant's double-parked truck was negligently parked and that its position on the roadway was a substantial factor in the causation of this collision", [emphasis added] (Affidavit by Bellizzi, dated January 28, 2019, filed in connection with the Charles matter). The relevant facts, in Charles, included that:
"the plaintiff's decedent, while driving westbound on Foster Avenue in Brooklyn, struck the defendant's unoccupied box truck in the rear while it was double-parked in the westbound lane. A surveillance videotape depicts the plaintiff's decedent's vehicle traveling at an excessive speed, striking the box truck without swerving or slowing down, and propelling the box
truck forward" (Charles v Bagels by Bell, Ltd., 203 A.D.3d 797, 797 [2d Dept 2022]).
In Charles, Bellizzi did not opine that the parked vehicle was "the" sole proximate cause of that accident. Thus, Bellizzi's Affidavits can be "reconciled" on that basis. Nevertheless, Bellizzi's Affidavit in Charles relates to his analysis in connection with the specific facts therein-which, as Defendants acknowledged, were profoundly different than those in the case at bar. In fact, the Court therein held that "the manner in which the plaintiff's decedent operated his vehicle [in rear-ending defendant's parked vehicle] was the sole proximate cause of the accident" (Charles v Bagels by Bell, Ltd., 203 A.D.3d 797, 797 [2d Dept 2022]).
(See JB HUNT/XTRA's Affirmation in Opposition, dated May 16, 2022, in "Action No 2" [Seq #3] dated May 16, 2022, p. 4, at NYSCEF Doc No 145).
In the instant matter, Bellizzi focused on opining on the liability of Defendant driver YULDASHEV, which rear-ended CAMACHO's parked vehicle, stating that YULDASHEV's actions "were substantial factors in the cause of these multiple collisions", and that YULDASHEV "had ample time, distance and opportunity to either bring his vehicle to a complete stop before reaching the stopped Toyota sedan ... in the right southbound travel lane on 1-95 or to steer six feet to the left in a collision avoidance steering maneuver". (Affidavit by Bellizzi, dated October 15, 2021).
Herein, regardless of whether Bellizzi believed that CAMACHO's parked vehicle was a proximate cause of the accident, this Court held that CAMACHO may also have been negligent, and so had denied that part of CAMACHO's motion which sought dismissal of Defendants' affirmative defenses on CAMACHO's culpable conduct, (see this Court's Order, dated March 21, 2022).
Moreover, in denying CAMACHO's motion to renew and reargue the same March 21, 2022 Order based upon the Charles decision, this Court held that: "A fair reading of the [Charles] decision does not change the facts herein or the basis in which the Court decided the motion." (See this Court's Order, in "Action No 2" [Seq #3] dated July 13, 2022, at NYSCEF Doc No 162).
Thus, Bellizzi's Affidavit, in the Charles matter, does not contain "new facts" that would change this Court's March 2022 Order, within the meaning of CPLR R 2221. A motion to renew is properly denied where movant "offered no new evidence that would change the prior determination" (Eurotech Constr. Corp, v Fischetti & Pesce, LLP, 169 A.D.3d 597, 597 [1st Dept 2019]).
Under the facts and circumstances herein, including the parties' sworn depositions, and the dashcam video, this Court's prior determination in its March 21, 2022 Order, was grounded on well-established legal principals, including that a driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account the weather and road conditions (Francisco v Schoepfer, 30 A.D.3d 275, 275 [1st Dept 2006]). VTL § 1129 (a) "Following too closely", provides that: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway".
Conclusion:
Accordingly, the motion by Defendants JB HUNT/XTRA, for leave to renew and vacate this Court's Order dated March 21, 2022, is denied.
This constitutes the decision and order of this Court.